Consensual Sex : Rape or Not ?

‘CONSENSUAL SEX IS NOT RAPE’ , rules SC. Ashutosh sarcastically smiled while reading this headline of his newspaper. Just few years back , his own love made him land into the jail. He was in a relationship with a girl and for some unavoidable reasons , he couldn’t marry her. To be precise, his family didn’t want him to marry that girl. He was told to choose between the girl and his family. He chose his family. And that was when everything went wrong. His family fixed his wedding with another girl and it was his wedding day when the police came and arrested him against the charge of RAPE. His girlfriend , furious about his refusal to marry her , had framed rape charges against him saying that he obtained her consent for sex on the promise of marriage. Due to this his marriage was called off and his father had a heart attack. Few days later he was out on bail and later court discharged him ruling that he didn’t rape her and she had sex with him with her own consent. Even if he was proved to be innocent , he lost his father and his marriage was also called off .

This is just an example. There are many other cases in which consensual sex was framed as a rape case against men by women ( mostly for revenge ).

Consensual sex is when both parties agree to have sex and show excitement and willingness to have sex. We live in a society where women are harassed and rape cases go up every year. That is the reason for the strictness of rape laws in our country. These laws were framed to deliver appropriate justice to the victims. But some women use these laws to satisfy their personal grudges against men.

When the relationship sours, some women portray consensual sex as rape and file FIR against their partner. They say that consent was given on the promise of marriage and as the man failed to fulfill his promise, it should be considered as ‘ misrepresentation of facts ‘ and he should be jailed. But the question arises- ‘ Is failure to fulfill promise of marriage same as rape?’ I don’t think so.

Also, I should clearly state the meaning of consent-

‘ Only YES means yes , rest everything means NO. ‘

“I am tired” , “I am not sure” , “Not now” and silence — everything means NO.

Consent is said to be given only when it is given freely by a woman. Having consensual sex with a woman after promising marriage does not amount to ‘misconception of facts’ and cannot land a man in jail for rape. However, if it is proved that promise was deliberately made to obtain consent of or to betray a woman, then it is considered as rape.

When such a case is filed , the court should see whether the person giving the consent has given it under fear or misconception of fact. The court should also be satisfied that the person doing the act, the alleged offender, is conscious of it. Only then the man should be held guilty and punished. The article below from TOI suggests key areas where lawmakers need to focus on-

Also, it is observed that when a rape case is filed against a person , we — the so called responsible citizens of India — do not think even once before defaming that person. Before that man is arrested by police or declared guilty by the jurisdiction, people start defaming that man on all social media portals. Do you have any idea how adversely it can affect that person ? No , you don’t if you haven’t experienced it. So that is the first thing we should start doing — STOP DEFAMING A PERSON UNTIL AND UNLESS HE IS DECLARED GUILTY!

CONSENSUAL SEX IS NOT RAPE until and unless the consent is obtained forcefully. In fact , when the consent to be physical is obtained forcefully, it is not consensual sex. In that case, it is misrepresentation of rape as consensual sex. Hence, consensual sex can never be rape.